Bropho v State of Western Australia

Federal Court of Australia|2006-03-21|Before: Nicholson J

REASONS FOR JUDGMENT 1 The respondents bring objections to portions of the affidavit of Margaret Joanna Jeffrey affirmed on 25 November 2005 filed in WAD 157 of 2003. The portions to which objection is taken and a summary statement of the grounds of objection are set out in the 'Table of Objections' in the schedule to these reasons. Also contained in that schedule is the ruling on each objection together with a short statement of reasons for the ruling. 2 The short statements of reasons are based upon the considerations arising, not only generally at law but also from the submissions of the parties in relation to which I make the following observations.

Hearsay 3 Objection is taken by the respondents on the ground that certain parts of the affidavit are based on hearsay, that is, previous representations made by other persons which cannot be admitted to prove the existence of a fact of what the other person intended to assert by the representation: s 59 of the Evidence Act 1995 (Cth) ('Evidence Act'). Alternatively, it is submitted that if the evidence is not sought to be tendered to prove the existence of the 'asserted fact' as defined in s 59(2) of the Evidence Act, then it is irrelevant. 4 In respect of the vast number of hearsay objections, the applicant submits that supplementary affidavits would clarify what events were observed by the deponent and what were observed by others. In reply to this, the respondents submit that such is not a satisfactory course and that the appropriate course is to strike out paragraphs which are expressed in a manner suggesting they are not based on the deponent's personal knowledge or which leave the Court unable to determine whether they are or are not based on such knowledge. That then leaves it for the deponent to swear a further affidavit in a proper form if that is able to be made. 5 I agree with the submissions in reply of the respondents. The evidence falls to be considered against the objection as it stands at the time the objection is made and required to be ruled on. It is not for the Court to conjecture how the evidence would stand in the light of evidence not yet to hand.

submissions/arguments/speculation 6 A number of objections are taken on the ground that the affidavit contains statements that are not evidence of facts but rather comments or observations which are in the nature of submission or argument and therefore do not constitute relevant and admissible evidence. The applicant accepts that there are elements of submission or argument in various paragraphs of the affidavit. Where those paragraphs are not the subject of other objections, the applicant undertakes that the submissions in those paragraphs will be taken up by way of submission following the evidence of the respondents' witnesses to which they relate.

opinion 7 The respondents object that the affidavit contains statements of opinion which are inadmissible by reason of s 76 of the Evidence Act. The applicant responds generally that the deponent, by reason of her qualifications and experience as set out in her affidavit and in particular her lengthy experience with the community in question, is qualified as an expert to provide opinions so far as they can be related to and are based on her observations over the 26 years of the applicant community at Lockridge campsite. It submits that where statements can be read on their face as applying to a group broader than those within that experience, they ought to be read down to apply to the Swan Valley Nyungah Community. Alternatively, it is submitted that to the extent that the deponent is expressing opinions based on what she perceived about the relevant matters or events and the evidence is necessary to obtain an adequate account or understanding of her perception of the matters or events, those opinions are admissible: s 78 of the Evidence Act. The respondents contend that the deponent's 'specialised knowledge' within the meaning of that term in s 79 of the Evidence Act is psychology. It is said that her opinions on the community cannot be wholly or substantially based on that knowledge. Where claims of her expertise are relied upon, the foundations of the specialised knowledge are challenged by the respondents. Further, where the statements of opinion relate to matters an ordinary person commonly perceives, it is said that s 78 cannot apply in respect of them. It is submitted that the section has no application to the opinions expressed by the deponent in her affidavit. 8 I have been unable to agree with this latter submission. Where the opinions are expressed about matters concerning the community based on the deponent's long association with it, in my view there is scope for some application by s 78. As a consequence of her long association with the community she cannot be regarded as 'an ordinary person' in making her perceptions.

parliamentary privilege 9 Reference is made in the affidavit to the Report of the Select Committee on Reserves (Reserve 43131) Bill 2003 In Relation To The Reserves (Reserve 43131) Bill 2003 dated November 2004 ('the Report'). This is a report of a select committee of the Legislative Council of the Parliament of Western Australia. The conduct of committees of Parliament cannot be called into question in proceedings before any court: s 1 of the Parliamentary Privileges Act 1891 (WA). However, the references to the Report are explained in various ways by the applicant, in particular, the references are not intended to put in issue the truth of any statement in the Report. The consequence is that the applicant states that any references by the deponent are not intended to be utilised by it to call into question the conduct of a committee of Parliament. Whether or not this is an exonerating circumstance depends on the application of the objection made in relation to each particular statement. 10 These are the general principles in accordance with which I have endeavoured to consistently resolve each of the objections. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson.

Associate: Dated: 21 March 2006 Counsel for the Applicant: GMG McIntyre SC

Counsel for the Respondents: G Tannin SC and S Wright

Solicitor for the Respondents: State Solicitor's Office

TABLE OF OBJECTIONS No. Par Portion Grounds Ruling Reasons

1 Last two sentences · Submission/argument Allowed Open to submissions
2 Whole · Submission/argument Allowed Open to submissions
6 Whole · Opinion Allowed Not expert opinion · Submission/argument Portion open to submission · Irrelevant
7 Sentence beginning 'As the Report …' and sentence beginning 'The complaints of lack…' · Hearsay Dismissed re first sentence First sentence to be read as her perception within s 78 · Opinion Allowed re second sentence Second sentence hearsay
7 Sentence beginning 'The attached Briefing Note…' · Hearsay/Relevance Allowed Irrelevant
9 From 'The Interim Report…' to the end of the paragraph · Hearsay Allowed Open to submissions · Submission
10 First sentence · Hearsay Disallowed On basis is a statement that no such event occurred at the SVNC ('Swan Valley Nyungah Community') Reserve · Alternatively, speculation with no basis
10 From 'The Coroner did not…' to the end of the paragraph · Hearsay Allowed Open to submissions · Submission
16-23 Whole · Hearsay Allowed Open to further affidavit in proper form if available
24-29 Whole · Hearsay Allowed Open to further affidavit in proper form if available
33 Whole · Hearsay Allowed Open to further affidavit in proper form if available
34 Whole · Irrelevant Allowed Open to further affidavit in proper form if available
39 Whole · Hearsay Allowed Open to further affidavit in proper form if available
43-46 Whole · Hearsay Allowed Open to further affidavit in proper form if available · Submission
50 Whole · Submission/argument Allowed To be taken up in submissions
52 Whole · Hearsay Allowed Open to further affidavit in proper form if available
55 Whole · Opinion · Allowed · Submission element to be taken up in submissions · Submission/argument · Allowed
58 Last sentence · Hearsay Allowed
59 First sentence · Opinion Disallowed Within s 78 and no objection to relevance
59 From 'The first was when he defended…' to the end of the paragraph · Hearsay Allowed Open to further affidavits in proper form if available and relevant
60 First sentence · Hearsay Allowed
62-68 Whole, except for: · Hearsay Allowed, subject to the stated exceptions Open to further affidavits in proper form if available and relevant · The last sentence in paragraph 67; and · The words 'Neither I' and the words 'has ever seen him provide anyone with alcohol' in paragraph 68
69 Last sentence · Hearsay Allowed
72 First sentence · Hearsay/Relevance Allowed Irrelevant
75 Sentence beginning 'The Report of the Select Committee…' · Hearsay Disallowed Truth not to be put in issue · Parliamentary Privilege

75 Sentence beginning 'The comments…' · Hearsay · Allowed in part · Reference to 'The comments of the Hooker Report' · Opinion · Disallowed · Within s 78 as to her own observations of DCD ('Department of Community Development') · Parliamentary Privilege · Disallowed · Truth of report not to be in issue · Submission/argument · Allowed in part · Applicable only to references to two reports, not personal observations
92 Whole · Hearsay · Allowed · Truth of report not to be in issue · Parliamentary Privilege · Disallowed · Open to submissions · Submission/argument · Allowed
93 Whole · Opinion · Allowed · Impossible to disassociate personal knowledge within s 78 · Submission/argument · Allowed · Open to submission
94 Whole · Hearsay Allowed Open to further affidavit in proper form if available
95 Whole · Hearsay Allowed Open to further affidavit in proper form if available
97 Whole · Hearsay Allowed Open to further affidavit in proper form if available
99 Whole · Hearsay Allowed Open to further affidavit in proper form if available
100 Whole · Hearsay Allowed Open to further affidavit in proper form if available
104 From 'The inconsistency is very…' to '… paragraph 24).' · Argument Allowed Open to submission
104 From 'At this visit…' to the end of the paragraph · Hearsay Allowed Open to further affidavit in proper form if available
106 Last sentence · Hearsay Allowed Open to further affidavit in proper form if available.
107 Whole · Opinion · Disallowed first three sentences · Within s 78 · Submission/argument · Allowed last three sentences · Open to submission

108 From 'If authorities had...' to the end of the paragraph · Opinion · Allowed · Not within s 78 · Submission/argument · Allowed · Open to submission
120 Sentence beginning 'If health services other…' · Opinion Disallowed Within s 78
123 First two sentences · Submission Allowed Open to submission
123 Last sentence · Hearsay · Allowed · Submission · Allowed
124 Whole · Submission/argument Allowed Open to submission
126 From 'As any anthropologist…' to '… is the white society'. · Opinion · Allowed · Hearsay · Allowed
126 Last sentence · Argument · Disallowed Within s 78
127 Whole · Submission/argument Allowed, second sentence First sentence is a statement of fact seemingly within deponent's personal knowledge
128 Whole · Submission/argument Allowed Open to submission 47 130 First three sentences · Submission/argument Allowed Open to submission
136 Whole · Hearsay Allowed
137 Whole · Hearsay Allowed
138 Whole · Opinion Disallowed To be understood in the terms of s 78
139 Whole · Hearsay · Allowed · Submission · Allowed
140, 141 Whole · Opinion · Allowed, second sentence · First sentence seemingly within deponent's perception: s 78 · Hearsay · Disallowed
144 Whole · Hearsay Allowed in relation to Sophie Deponent capable of giving evidence on SVNC
137 (sic) The words 'His report fails to take into account that' · Argument Allowed Open to submission
137 (sic) Last sentence · Hearsay Allowed

Annexure Portion Grounds Ruling Reasons 56. MJA Whole · Hearsay · Allowed · Deponent not relevantly an expert: s 79 · Opinion · Allowed · Relevant to explanation of deponent's view · Irrelevant · Disallowed 57. MJB Whole · Hearsay · Allowed · Opinion · Allowed 58. MJC Whole · Hearsay · Allowed · Deponent not relevantly an expert: s 79 · Opinion · Allowed · Truth not in issue · Parliamentary Privilege · Disallowed 59. MJD Whole · Hearsay Allowed

Evidence Act 1995(Cth)ss 59, 59(2), 76, 78, 79

At a glance

Court

Decision date

Before

Source

Judgment (12 paragraphs)

Parties

Legislation Cited (2)

Cited By (1)